NAKL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 147 (10 February 2004)

Migration Act 1958 (Cth) s 424A(3)

Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627 cited
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited
NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 referred to
VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 referred to

NAKL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 2000 OF 2003

HELY J
10 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2000 OF 2003

BETWEEN:	NAKL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	10 FEBRUARY 2004
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2000 OF 2003

BETWEEN:	NAKL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	10 FEBRUARY 2004
PLACE:	SYDNEY

1 This is an application for an extension of time within which to file and serve a Notice of Appeal from the decision of Federal Magistrate Raphael which was given on 28 October 2003. The appeal period expired on 18 November 2003. On 24 November 2003 an application for an extension of time to file and serve a Notice of Appeal was lodged but the application was not accompanied by a draft Notice of Appeal.

2 The delay in seeking an extension of time was less than a week. The applicant seeks to explain that delay upon the basis that the applicant did not receive written reasons from the Federal Magistrates Court until 19 November 2003. Although the applicant was present in the Federal Magistrates Court when a decision was given and the Magistrate’s reasons were pronounced, the applicant does not speak, and cannot understand, the English language.

3 If the only impediment to the granting of an extension of time was the length of delay I would have been prepared to grant an extension. However, the authorities are clear that an extension of time should be refused if an applicant is unable to demonstrate any arguable ground of appeal, because in those circumstances the grant of an extension of time would be futile: see, for example, Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627 at [12].

4 The application came before me on 2 December 2003 and 11 December 2003. On each of those occasions, over the Minister’s opposition, I adjourned the matter to afford the applicant an opportunity of securing legal advice if he could, and the opportunity to file a document detailing the grounds of appeal, so as to demonstrate that the grant of an extension of time would not be an exercise in futility.

5 On 2 February 2004 a document styled ‘Applicant’s Submission’ was filed. This document details the matters on which the applicant wishes to rely, in the event that an extension of time within which to appeal is granted.

6 The applicant is a citizen of Bangladesh who claimed to have a well-founded fear of persecution in Bangladesh for reasons of his political opinion as a member of the Jatiya Party. The Refugee Review Tribunal (‘the RRT’) found that the applicant was not a truthful or credible witness for reasons which it gave. The RRT did not accept any of the applicant’s claims, including his claim to be an active member of the Jatiya Party. In the RRT’s assessment the applicant had concocted his claim to be a refugee. In any event, the RRT found on the basis of country information that members of the Jatiya Party are not generally at risk of serious harm in Bangladesh as a consequence of the peaceful expression of their political opinions.

7 It is against that background that the document styled ‘Applicant’s submission’ needs to be assessed. Paragraphs 2 - 3 of that document assert that the circumstances of the present case are identical with the agreed facts in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 which is said to be determinative of the present application. That submission must fail as the applicant did not prove, or even set out to prove, before the Federal Magistrate facts analogous to those which were agreed in Muin: see NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293, VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350, and the other cases referred to in par 15 and following of the respondent’s written submissions. The applicant does not appear to have raised Muin’s case before the Federal Magistrate at all.

8 Paragraphs 4 - 5 of the applicant’s submission assert that the RRT did not believe the applicant. In these paragraphs, it is asserted that the RRT failed to investigate the applicant’s claims through the Department of Foreign Affairs (‘DFAT’) or other independent sources. It is said that the RRT was heavily reliant on generalised DFAT reports and that the RRT did not consider supporting facts and documents. However, it was a matter for the RRT to decide whether it believed the applicant, and it was a matter for the RRT to determine the weight to be placed on country information and DFAT reports. The matters alleged in these paragraphs do not rise above sweeping unsupported assertions which, at least to some extent, are internally contradictory. An appeal to this Court is not a merits review of the RRT’s decision. These paragraphs do not demonstrate any arguable ground of appeal.

9 Paragraphs 6 - 9 of the applicant’s submission are generalised assertions as to the applicant’s understanding of the nature of jurisdictional error. They are not grounds of appeal and nor do they expose any error on the part of the Federal Magistrate. Paragraphs 10 and 11 of the applicant’s submission assert actual bias on the part of the RRT. However, the fact that the applicant was comprehensively disbelieved by the RRT is not a basis to an allegation of bias. The allegation of bias was not raised before the Federal Magistrate, or in the original application, or in the document which was lodged by the applicant with the Federal Magistrate setting out the three grounds of his complaint. The allegation of bias is unsupported by evidence and is unparticularised, except that an alleged failure to investigate the applicant’s claims of persecution as a political activist is relied upon as indicating bias. Hence, there is no foundation for a conclusion that the RRT failed to investigate the applicant’s claims. The RRT considered those claims but rejected them upon the grounds that they were a concoction. These paragraphs do not identify any arguable ground of appeal.

10 Paragraph 12 of the applicant’s submission asserts that the RRT’s failure to investigate ‘what socio-economic changes might occur in Bangladesh in the reasonably foreseeable future’ implied that ‘the RRT did not complete the exercise of its jurisdiction’. The complaint in this paragraph is misconceived. As the RRT found that the applicant had concocted his claims to be a political activist, it was not obliged to make any such findings. This paragraph does not identify any arguable ground of appeal.

11 Paragraph 13 of the applicant’s submission asserts that the RRT ‘did not provide the applicant with particulars of information which formed part of the reason of the RRT’s decision, namely that the persecution against political activists in Bangladesh had subsided’. This complaint is without substance, as the RRT did not base its decision on a finding that persecution against political activists in Bangladesh had subsided. The RRT simply did not accept that the applicant was a political activist. In any event, s 424A(3) of the Migration Act 1958 (Cth) (‘the Act’) would apply to the generalised country information which appears to be the subject matter of the par 13 complaint. This paragraph does not identify any arguable ground of appeal.

12 In my opinion an extension of time should be refused because, having regard to the grounds of appeal upon which the applicant has said that he wishes to rely, the grant of an extension would be futile. The application for an extension of time filed on 24 November 2003 should be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Applicant:	The applicant appeared in person

Counsel for the Respondent:	Mr A Crockett

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	10 February 2004

Date of Judgment:	10 February 2004

Federal Court of Australia

NAKL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 147 (10 February 2004)